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Right to Liberty and Security

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Sovereignty

State sovereignty

1) External (independence)

2) Internal (competence to enact laws)

3) Territorial (authority over all persons/things on its territory)

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Fundamental principle:

Power to manage migration must be exercised in full respect of international commitments

sovereignty Int. law

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Freedom of movement

• If lawfully in State, right to liberty of movement and freedom to choose residence

• Once a person is ‘lawfully within’ a state any restrictions on freedom of movement or choice of residence must be judged according to the ‘aliens generally’ standard. Any restrictions imposed on ‘aliens generally’ would need to conform with international law. Article 12(1) of the ICCPR provides

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• The right to liberty and security of person is a fundamental human right and an essential component of legal systems enjoying the rule of law.

• Like all human rights, it applies on principle to all human beings, regardless of immigration or other status.

• The right is found in two provisions of the Universal Declaration of Human Rights 1948 (UDHR): ‘Everyone has the right to life, liberty and security of person’ (Article 3) and ‘No one shall be subjected to arbitrary arrest, detention or exile’ (Article 9). These were subsequently transferred into Article 9 of the ICCPR, which guarantees liberty and security of person and prohibits arbitrary deprivation of such liberty.

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• Article 9 ICCPR expresses the general principle of liberty and security of person. Article 9 applies to all deprivations of liberty, including detention for the purposes of immigration control.

• Any deprivations of liberty must thus be in accordance with the terms set out in Article 9, as developed by relevant human rights jurisprudence.

• Article 9 does not prohibit immigration detention, nor is the right to liberty and security of person absolute; rather it is a substantive guarantee against unlawful as well as arbitrary detention.

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Restrictions on freedom of movement

• provided by law

• necessary to protect national security

• necessary to protect public order

• necessary to protect public health or morals or the rights and freedoms of others.

• consistent with other rights

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• First, any detention or deprivation must be in accordance with and authorised by law. Any deprivation of liberty that is not in conformity with national law would be unlawful – as a matter of national as well as international law – and therefore in breach of Article 9(1). Moreover, domestic legislation which permits the use of detention but which is not in conformity with international human rights standards would also be in violation of Article 9(1).

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• Detention which may be initially legal may become “arbitrary” if it is unduly prolonged or not subject to periodic review.

• In its General Comment No. 8 concerning Article 9, the Committee lays down the elements that must be tested in determining the legality of preventive detention:

• “If so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1),

• information of the reasons must be given (para. 2) • and court control of the detention must be available (para. 4) • as well as compensation in the case of a breach (para. 5). • And if, in addition, criminal charges are brought in such cases, the

full protection of Article 9(2) and (3), as well as Article 14, must be granted.”

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• The other international bodies which verify the respect of the human rights treaties have established that the right to liberty postulates that every restriction to this right be exceptional.

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Detention

• Criminal Detention– Imprisonment under criminal laws

• Administrative Detention – often under the immigration laws– in practice fewer guarantees and safeguards

against violations

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• Each of the main regional human rights treaties contains a prohibition against arbitrary deprivation of liberty in similar terms to those set out in Article 9 of the ICCPR.

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• Restrictions to liberty based on an administrative act are admissible under international law but the measure must be based on a law that provides with sufficient clarity and regulate the procedures to be observed.

• The legality of a detention must be verified also against international law and particularly against the provisions of the ICCPR.

• The lack of legality from an international perspective often derives from the fact that some States in the absence of a legislation authorising deprivation of liberty for migrants “label migration detention centres as “transit centres” or “guest houses” and “detention” as “retention”

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• It is not enough for deprivation of liberty to be provided by law.

• The law itself must not be arbitrary, and the enforcement of the law in a given case must not take place arbitrarily.

• The notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability.

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• No prohibition under international law

• International law provides procedural safeguards

• Detention must be carried out fairly

• Widespread evidence that States breach their obligations

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• In the returns context, for example, it has been held to be disproportionate to continue to detain someone where there is no ‘real and tangible’ or ‘reasonably foreseeable’ prospect of removal.

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Proportionality

• Proportionality applies in relation to both the initial order of detention as well as its extension. The length of detention can render an otherwise lawful decision to detain arbitrary.

• detention should not continue beyond the period for which the State can provide appropriate justification.

• As each individual case must be examined on its merits, and periodically reviewed, it is not possible to identify a standard acceptable period of detention. On the other hand, maximum periods in detention ought to be set to guard against arbitrariness.

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• The detention of migrants either criminal or administrative has been defined as a “confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory”.

• Detention prior to expulsion has been considered a deprivation of liberty falling within the scope of Article 9 of the International Covenant on Civil and Political Rights (ICCPR)

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• The reasons justifying the detention of migrants, such as the necessity of identification of the migrant in an irregular situation, the risk of absconding, or facilitating the expulsion of an irregular migrant who has been served with a removal order, “must be clearly defined and exhaustively enumerated in legislation.”

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• Detention must be ordered and approved by a judge and there should be automatic, regular and judicial, not only administrative, review of detention in each individual case.

• Everyone shall also have the right to challenge the legality of his or her detention before a court and have access to a lawyer.

• The Human Rights Committee expressed the view that judicial review of the lawfulness of detention must include the possibility to order release if the detention is incompatible with the requirements of the Covenant

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Art 16 ICRMW (extensive procedural rights) arbitrary detention prohibited

detention only on grounds and in accordance with procedures established by law

consular authorities of State or origin, if migrant so requests, to be informed without delay

right to prompt communication with the authorities right to take proceedings before the court so that lawfulness of

detention can be determined enforceable right to compensation if detention unlawful

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Non-Discrimination

• If a particular measure applies disproportionately to a particular ethnic, racial or religious group, for example, without a reasonable and objective justification, the measure would be discriminatory under the ICERD

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Proper purpose

• A decision to detain ‘actuated by bad faith or an improper purpose’ may also render the detention arbitrary.

• Using detention to deter irregular migration in general may amount to an improper purpose, as it is not tailored to an individual case. It may also amount to collective punishment

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Conditions of Detention

 

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person

Art 10, ICCPR

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Procedural safeguards

• Any immigrant in detention must be brought promptly before a judicial or other authority and there must be a possibility to challenge the legality of detention

• The ground for custody must be based on criteria of legality, i.e. established as law by a duly empowered authority;

• A maximum period should be set by law and the custody may in no case be unlimited or of excessive length;

• Any immigrant must be notified of the custodial measure in a language understood by him or her, including the conditions for applying for judicial review, which shall decide promptly on the lawfulness of the measure and be competent to order the release of the person concerned, if appropriate;

• States must place immigrants in premises separate from persons imprisoned under criminal law; and

• Periodical review

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Burden of Proof

• The burden of proof to establish the lawfulness of the detention rests on the government in question.

• the state must establish that there is a legal basis for the detention in question, that the detention is justified according to the principles of proportionality and necessity, and that it has considered other, less intrusive means of achieving the same objectives and they were not applicable.

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Detention (“soft” law)

Standard Minimum Rules for the Treatment of Prisoners (1955)

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988)

UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (1999)

United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990)

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Specific standards

• Right to be informed and to communicate with the outside world

• Registration at detention facilities • Maximum length of detention

- A maximum period of detention must be established by law and this may in no case be unlimited or of excessive length.Upon expiry of this period, the detainee must be automatically released.

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• Special care of vulnerable/at risk groups

• Alternatives

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Groups at Risk

• the specific vulnerabilities of children call for additional safeguards against arbitrary deprivations of liberty. As the ECtHR noted in Muskhadzhiyeva, the extreme vulnerability of a child takes precedence over the status of an irregular migrant

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• Research shows that immigration detention has widespread and seriously damaging effects on the mental (and sometimes physical health) of those incarcerated.

• For those with pre-existing mental illness or those who are suffering from trauma, serious consideration must be given to A2Ds, or other arrangements that meet their treatment needs and subject to the safeguards elaborated under Article 9 of the ICCPR.

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Alternatives

• The widespread and growing use of immigration detention has come under considerable scrutiny in recent years on pragmatic (practical and functional) as well as human rights/legal grounds.

• Pragmatically, no empirical evidence is available to give credence to the assumption that the threat of being detained deters irregular migration, or more specifically, discourages persons from seeking asylum.

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• International human rights laws and standards make clear that immigration detention should be used only as a last resort in exceptional cases after all other options have been shown to be inadequate in the individual case. Despite the clear direction to authorities to first consider less onerous options, there is little clarity over how this can be achieved in a systematic manner.

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• A distinction must be drawn between a deprivation of liberty, coming into account with respect to detention, and a simple restriction of movement, characterising the alternative measures to detention. The European Court of Human Rights clearly affirmed that: “the difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance.”

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• International legal principles of reasonableness, proportionality and necessity require that states justify their use of detention in each case by showing that there were not less intrusive means of achieving the same objective.

• The principle of proportionality must also be read as requiring detention to be a measure of last resort.

• The failure of many governments to offer any alternatives to detention, or to fail to pilot them or to systematise them, puts their detention policies and practices into conflict with international law.

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• Many states have legislated for A2D or require that the “availability, effectiveness and appropriateness of alternatives to detention must be considered.”

• There is a range of A2Ds in operation, including reporting or residency requirements, guarantees, sureties or bail, community supervision or case management, electronic monitoring, and home curfew. The ultimate A2D is liberty.

• Various human rights and other bodies have warned states that any alternatives developed must not function as alternative forms of detention.

• Many alternatives restrict movement or deprive liberty to greater or lesser degrees in practice and, as such they are regulated also by the prohibition on arbitrary deprivations of liberty, they must only be imposed where they are necessary and proportionate to the objectives in question.

• In order to satisfy these requirements, the least intrusive alternative must be taken in each individual case.

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• The question of immigration detention and potential alternatives is also now firmly on the international human rights agenda.

• The United Nations Human Rights Council (UN-HRC) (then Commission) extended the mandate of its Working Group on Arbitrary Detention (WGAD) to include immigration detention in 1997.

• The Working Group has since produced various reports on the issue.40 In 2007, it recommended that the UN-HRC conduct ‘an in-depth and urgent deliberation to seek effective alternatives to prevent violations of rights of the large numbers of asylum-seekers and irregular migrants in detention around the world

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Examples of A2Ds

• No detention or release without conditions or on own recognizance • Release on conditions • Release on bail, bond, surety/guarantee • Community-based supervised release or case management

NGO-run models Hybrid government-NGO cooperation or partnership models Government-run models

• Designated residence at a particular accommodation centre • Electronic tagging or reporting, or satellite tracking • Home curfews • Complementary measures

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Thank you!